ASSESSMENT NAME: MEMORANDUM OF ADVICE

STUDENT ID: xxxxxxx

WORD COUNT: 2745

MEMORANDUM OF ADVICE

TO: Ms Mary Elizabeth Braddon
FROM: xxxxxxxxxxxxxxxx
RE: Mr Kevin Hock- Unlawful Discrimination Based on Political Conviction
DATE: 26 April 2015

I QUESTION PRESENTED
Are the events as described by Mr Kevin Hock adequate grounds to pursue civil action against The Canberra Cycling Club under the Discrimination Act (ACT)?

II SHORT ANSWER
Under section 22 of the Discrimination Act (ACT), it could be circumstantially demonstrated that The Canberra Cycling Club committed an unlawful act of discrimination based on the political conviction of Mr Hock. However, there are limitations as to what action Mr Hock could pursue as detailed in the Discrimination Act (ACT) sections 71 and 72. In order for Mr Hock to be awarded damages, a judgement from the Tribunal would be required that the action was unlawful discrimination based on political conviction that is substantiated by the evidence presented. It would further have to be demonstrated that Mr Hock had been treated in a manner that was inconsistent with a manner in which other members of the club based on his political conviction. This is a point which cannot be adequately demonstrated on the balance of probabilities by the statement of facts provided.
III STATEMENT OF RELEVANT FACTS
The statement of relevant facts relating to Mr Hock’s claim of discrimination are: * Mr Hock has been an active member of the Canberra Cycling Club since 2012. * In February, Mr Hock filled out a form for renewal of his club membership, payed his $39 membership fee, and submitted the form on 1 March 2015. * On 5 March 2015, he received a message from the Club Board saying that they are refusing to renew his membership because he failed to meet the requirements of the Club by-laws which state that memberships are to be submitted by 28 February. * The Club returned his $39, and suggested that as his membership lapsed he will need to apply again, and pay a $200 penalty, as set out in the Club by-laws. * Mr Hock knows that other members of the Club who paid on 1 March 2014, did not incur the penalty. An example of this is another club member ‘Georgiana’ that has said that that was exactly what happened to her in 2014. * Mr Hock has joined a political party called the Australian Animal Justice Party and has participated in peaceful protests in front of the Australian Economy Party (AEP) office in Turner. The protests included vocal statements that in effect condemned the practises of the AEP in relation to their treatment of chickens. * Mr Hock is of the belief that his statements about the AEP and animal cruelty are the reason his initial application for renewal was rejected hence the requirement is to pay the additional penalty to renew his membership at the Canberra Cycling Club. * Mr Hock had found out through the ‘Club grapevine’ that a number of members of the Club Board were staunch AEP supporters.

IV RELEVANT LEGISLATION
Commonwealth and Territory legislation relevant to the matter at hand are the Discrimination Act 1991 (ACT), Human Rights Commission Act 2005 (ACT), Evidence Act 2011 (ACT), A.C.T Civil & Administrative Act 2008 (ACT) and Human Rights and Equal Opportunity Commission Act 1986 (Cth).
V DISCUSSION
Mr Hock wishes to pursue action against the Canberra Cycling Club regarding discrimination based on Mr Hock’s political conviction. The action is based on contravention of the Discrimination Act 1991 (ACT) section 22 “clubs”. Section 22 describes the prohibitions on clubs when it comes to acts of discrimination. However section 22 relies upon other sections of the Discrimination Act to be effectively understood and applied so that an act of discrimination can be demonstrated. Pursuant with sections 7 and 8 of the Act, political conviction is an attribute that is protected by law against discrimination by clubs and the attribute that is the subject of this discussion.

A Definition of what constitutes discrimination under sections 7, 8.
Part 2, section 8 of the Act defines discrimination as:
[A] person discriminates against another person if the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7.
Section 7 of the Act details the attributes of discrimination as applying to discrimination on the ground of any of the attributes of: (i) religious or political conviction.
Part 2, Section 8 (3) states that:
[I]n deciding whether a condition or requirement was reasonable the following must be considered:
(a) the nature and extent of the resultant disadvantage; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement.
The attribute that is the reference of this discussion is described under s 7 of the Act as being the ‘Political Conviction’ of Mr Hock. Mr Hock’s political conviction has been demonstrated in the relevant statement of facts as he is an active member of the Australian Animal Justice Party and has openly stated opposition to the AEP and its political values. Mr Hock believes that once his political affiliation became known to other members of the club the terms of his membership were varied on that basis which is in contravention with section 22 (discrimination by clubs).

B Section 22 – Discrimination by clubs
Concerning discrimination by clubs, section 22, describes discrimination by clubs as:
[I]t being unlawful for a club, the committee of management of a club or a member of the committee of management of a club to discriminate against a member of the club by depriving the member of membership or varying the terms of membership; or by subjecting the member to any other detriment.
The intention of section 22 of the Act is to ensure that all members of a club are treated equitably regardless of attributes defined under section 7 of the Act. This includes, but is not limited to, political conviction that is contradictory to the general political view held by other members of the club or being subjected to additional membership requirements based on political conviction or other attributes.
Additional requirements that Mr Hock was subjected to that was not required of other members contravened part 3, section 22 of the Act. (a) In February, Mr Hock filled out his membership renewal application and on 1 March 2015 submitted the application along with the $39 membership fee. Submission of the membership application was a day later than the membership conditions allowed for, however this was not an unusual practise at the club as was noted by other club members as having done the same in previous years. The clubs refusal to accept the application based on late submission is in contravention of section 22 (b) and (d) as the terms of membership had been varied in a manner that was inconsistent with the requirements of other club members.

(b) The penalty of $200 imposed on Mr Hock was in further contravention with section 22 (d) and (e) as the varying of the terms of membership subjected Mr Hock to further detriment financially. This variation of the terms of membership was not to guarantee membership renewal acceptance but merely to allow Mr Hock to reapply for membership with no guaranteed outcome of the application process.

C Division 4.4--Exceptions Relating to Political Convictions
Section 45 of the Act relates to exceptions to discrimination based on political conviction where the complainant works for a political party or in the staff of a political actor. Mr Hock does not fit these circumstances and as such there is no legitimate grounds for him to have been disadvantaged based in political conviction.
D Limitations of the Act
Section 71 of the Act states that ‘the doing of an act is not an offence only because it is unlawful under part 3, part 5, section 66 or part 7’. An extension to that relates to section 72 that states ‘this Act does not give a person any right of action in relation to the doing of an act that is unlawful under part 3, part 5, section 66 or part 7’. As this applies to exemptions relating to political conviction that are not applicable to Mr Hocks matter this section of the Act does not have to be considered as part of recommended action to be undertaken.

E Limitations of the Facts
In order to demonstrate due diligence in recommending action to be taken in relation to the matter additional information is needed from Mr Hock. The following clarification will be required: 1. Clarification of other member’s submission of membership renewal in 2015.
Detailed in the information provided in a statement provided ‘Mr Hock knows, that other members of the Club who paid on 1 March 2014, did not have to pay the penalty; Georgiana said that that was exactly what happened to her.’ As this was in a different year to Mr Hock’s membership issue and subsequent claim of discrimination it is of importance to determine whether there were any exceptions to late membership fees during the same period of Mr Hock’s membership renewal. This point is of importance to establish, as blanket application of the rigid membership requirements could mean that there was no discriminatory behaviour by the club. 2. Clarification on the speech made regarding the AEP.
As highlighted in details provided by Mr Hock, it is acknowledged that Mr Hock did make a speech condemning the acts of the AEP which he believes lead to the subsequent alleged act of discrimination, however it can only be assumed that this speech was seen by other club members. The speech was televised at the club but the extent of which the speech was viewed by other members is not a matter of fact. 3. Verification of the extent of the support for the AEP within the club.
Contained in the details provided by Mr Hock is the statement that Mr Hock found out through the club grapevine that a number of members of the Club Board were staunch AEP supporters. This statement needs to be verified as being factual or disregarded based on whether it can be substantiated or whether it is conjecture. If the issue cannot be substantiated then it must be disregarded for the purposes of pursuing the matter.

4. Has Mr Hock approached the club for resolution?
This point needs to be established to advice Mr Hock on referral of the issue to the A.C.T Human Rights Commission. Mr Hock seeking resolution through the club directly prior to pursuing action will strengthen his case if other avenues of redress are unsuccessful.

F Persuasive Case Law 1. Kovac v Australian Croatian Club Limited [2014] ACAT 41 (4 July 2014)
Kovac v Australian Croatian Club Limited was a matter in which the Australian Croatian Club had been accused of discrimination based on political affiliation of one of its members. It was alleged and found that the Australian Croatian Club had discriminated against Mr Kovac by treating him unfavourably. This unfavourable treatment was refusing him renewal of his club membership, failure to accept his application for voting status within the club and by affording ‘onerous terms and conditions upon the application for membership because of the applicant’s political conviction, in contravention of the Discrimination Act 1991 (ACT)’.
Similarly to Mr Hock, Mr Kovac’s political affiliation was well known to other members of the club and his position differed to the political views that other members of the club including board members openly had. The difference in the matter was that Mr Kovac had posted comments on Facebook directly attacking the club whereas Mr Hock had not particularly aimed his comments at the club but more a political party that club members were supportive of. Another point of difference is that in the matter of Kovac, the individual was denied renewal of his membership whereas Mr Hock has only been asked to reapply but has been financially penalised.

2. Daley v Club Academy Pty Ltd [2011] ACAT 85 (14 December 2011)
Daley V Club Academy Pty Ltd is a racial discrimination complaint by Mr Daley that he was unlawfully discriminated against on the grounds that he was of Aboriginal decent (racial discrimination) set out in the Discrimination Act 1991(ACT) sections 8 and 20 and section 53E of the Human Rights Commission Act 2005 (ACT).
Mr Daley claimed that in July 2010 he was denied entry to the club based on his race. He claimed that he was denied entry by a bouncer because the club owner didn’t like the look of him. The claim of racial discrimination was denied as it was determined that Mr Daley was dressed in a way that was not compliant with the dress standards that the club enforced. Denial of entry wasn’t discriminatory as the club had clearly established laws governing acceptable dress required for entry to the club.
In relation to Mr Hock’s claim, Mr Daley’s race was purely coincidental. In the matter a lack of ability to adequately demonstrate on the balance of probabilities that Mr Daley had been discriminated against based on race alone is of significance when looking at Mr Hock’s claim of discrimination. Neither matter had anything other than circumstantial evidence that validated a claim of discrimination by a club. Non-compliance with the clubs by-laws was the reason for denial of access to the club of Mr Daley. The same principle can be applied to Mr Hock’s non-compliance with the Canberra Cycling Clubs by-laws in not renewing his membership within the required timeframe.

VI CONCLUSION
A Conclusion
As demonstrated by the details contained in this memorandum there is a strong circumstantial argument to be made for a determination of unlawful discrimination based on the political conviction of Mr Hock. There are additional requirements as stated in the limitation of facts that need to be addressed prior to making a definitive recommendation for Mr Hock to pursue discrimination action. The matter of Kovac vs Australian Croatian Club provides a weak precedent for Mr Hock to pursue action based on discrimination on political conviction. The limitations presented by the statement of facts creates concerns when establishing the chances of adequate outcome to the matter. As in the matter of Daley v Club Academy Pty Ltd there are concerns as to the degree with which Mr Hock can substantiate his claim of discrimination based on the limitation of the facts.
B Avenues of Redress
It is recommended that Mr Hock seek resolution firstly by approaching the club directly to pursue an adequate outcome. If Mr Hock cannot seek appropriate redress for the penalties imposed by The Canberra Cycling Club as well as successful acceptance of his application for membership then this would strengthen his case for pursuing the matter in a court of law. Prior to seeking remedy through the court, Mr Hock must first pursue remedy through the Human Rights Commission who operate under the functions described in the Human Rights Commission Act 2005 (ACT). Section 23 of the Act describes: (2) The functions of the commission in relation to discrimination include the following: (a) to promote the right of people to be free from unlawful discrimination in (iii) the activities of clubs;
As such under the Act, the Human Rights Commission can assist in facilitating appropriate redress for Mr Hock’s claim prior to the issue being referred to A.C.T. Civil and Administrative Tribunal for consideration of the complaint. If Mr Hock is still unsatisfied with the outcome of the complaint then he has the right to appeal the tribunal’s decision under the ACT Civil & Administrative Act 2008 (ACT). An appeal can only be sought if the issue is not satisfactorily resolved on a question of fact or law.

VII BIBLIOGRAPHY
A Books/Reports * NA
B Cases * Daley v Club Academy Pty Ltd [2011] ACAT 85 * Kovac v Australian Croatian Club Limited [2014] ACAT 41

C Legislation * ACT Civil And Administrative Tribunal Act 2008 (ACT) * Acts Interpretation Act 1901 (Cth) * Civil Dispute Resolution Act 2011 (Cth). * Discrimination Act 1991 (ACT) * Evidence Act 2011 (ACT) * Human Rights Act 2004 (ACT) * Human Rights and Equal Opportunity Commission Act 1986 (Cth) * The Human Rights Commission Act 2005 (ACT)

--------------------------------------------
[ 2 ]. Discrimination Act 1991 (ACT) s 22
[ 3 ]. Kovac v Australian Croatian Club Limited [2014] ACAT 41. Political conviction is defined as encompassing political belief and does not necessarily limit it to political activity, it is sufficient if a person holds a particular political belief.
[ 4 ]. Discrimination Act 1991 (ACT) s 71-72
[ 5 ]. Evidence Act 2011 (ACT) s 140. Describes the Civil proceedings: standard of proof as (1) the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
[ 6 ]. All points from the statement of facts have been taken from Memorandum of Advice Assignment published on the Moodle page of the University Of Canberra website 2015.
[ 7 ]. Discrimination Act 1991 (ACT) s 22
[ 8 ]. Ibid s 22
[ 9 ]. Ibid s 7-8
[ 10 ]. Ibid s 8
[ 11 ]. Ibid s 7
[ 12 ]. Ibid s8 (3)
[ 13 ]. Discrimination Act 1991 (ACT) s7
[ 14 ]. Ibid s 22
[ 15 ]. Discrimination Act 1991(ACT) s 22 (b)-(d)
[ 16 ]. Ibid s 22 (d)-(e)
[ 17 ]. Ibid
[ 18 ]. Kovac v Australian Croatian Club Limited [2014] ACAT 41
[ 19 ]. Ibid
[ 20 ]. Ibid
[ 21 ]. Ibid
[ 22 ]. Daley v Club Academy Pty Ltd [2011] ACAT 85
[ 23 ]. Ibid
[ 24 ]. Ibid
[ 25 ]. Ibid
[ 26 ]. Human Rights Commission Act 2005 (ACT) s 23
[ 27 ]. ACT Civil & Administrative Act 2008 (ACT) s 79
[ 28 ]. Ibid